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Privilege Claim and Roberts Memos:

An L.A. Times article says:

The White House is citing the attorney-client privilege as the basis for refusing to reveal memos written by Supreme Court nominee John G. Roberts Jr. when he was representing the government before the high court. At the time, Roberts was the top deputy to Solicitor Gen. Kenneth W. Starr.

But it is not clear that this legal privilege shields the work of government lawyers from the eyes of government investigators — thanks to a legal ruling won by Starr himself, when he was independent counsel investigating President Clinton.

Usually, the attorney-client privilege protects private lawyers from being forced to reveal what their clients told them. It also shields their notes and memos from prosecutors. This rule of secrecy is seen as vital to the adversarial process.

But in 1996, Starr challenged the notion that White House lawyers who worked for Clinton could invoke the attorney-client privilege when Starr sought notes they had written.

Starr argued that the lawyers worked for the people of the United States, not for the president.

Democrats are making a similar argument in Roberts' case: that the solicitor general represents the public interest.

The dispute was one of many legal tussles during Starr's six-year investigation of the Whitewater matter. It resulted in a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did.

"We believe the strong public interest in honest government and in exposing wrongdoing by public officials would be ill-served by recognition of a governmental attorney-client privilege" when prosecutors or congressional investigators are seeking information, the U.S. Court of Appeals in St. Louis said. "Even if we consider a congressional investigation to be an adversarial proceeding, the only harm that could come to the White House as a result of such an investigation is a political harm." . . .

Two questions for our readers:

1. Is the White House really claiming an attorney-client privilege, in the sense of saying that it has a legal right to withhold the documents? I had thought that it was simply saying that such documents shouldn't be turned over, since turning them over would deter some future government employees from giving the most candid possible advice. That's an argument that applies to nonlawyer employees as well as lawyer employees; to the extent it's translated into a legal entitlement, it would sound more like executive privilege than attorney-client privilege; but in any event, it's not an assertion of a legal right to refuse to disclose information (in part because no such assertion of legal right is necessary, at least yet, since there's no actual subpoena from a Senate committee demanding those documents).

But perhaps I'm mistaken — perhaps the White House has indeed said the documents are legally privileged, under the attorney-client privilege. I've seen some press accounts characterizing the White House's actions this way, but I wonder if there are any quotes from White House statements that make this clear.

[UPDATE: Commenter Bryan DB kindly pointed me to the Transcript of the Jul2 6 White House press briefing, which says in part, "MR. McCLELLAN: Well, I'm talking about that this is attorney-client privilege, and it relates to the deliberative process." So the White House is indeed claiming that the documents are covered by the attorney-client privilege; many thanks for the information!]

2. As I read the Eighth Circuit case that the article cites, the court held only that there's no government attorney-client privilege in criminal cases, where information is demanded by the grand jury. The court's reasoning focused heavily on criminal investigations, and it said that it "need not and do[es] not decide" what should happen in civil cases; this suggests that it also didn't decide what should happen in other noncriminal investigations, such as a Congressional investigation that wasn't focused on criminal conduct.

The language that the article quotes about congressional investigations focuses (as best I can tell) on a very different subject: whether the work product privilege (a different privilege) applies under conditions when the work product is generated in anticipation of a congressional investigation.

So while the logic of the opinion might possibly be extended to Congressional subpoenas, even ones that are unrelated to investigation of criminal wrongdoing, it seems to me that the court's holding doesn't really apply here. There was "a broad appeals court ruling that held that government lawyers did not have the same right to keep secrets as private attorneys did," but it was not broad enough to hold anything about rights to keep secrets vis-a-vis Congressional inquiries. Can readers who are familiar with this area of the law, or who have read the Eighth Circuit case, tell me whether I'm mistaken?

I should note that none of this relates to whether it's good policy or good politics for the government to refuse to disclose those memos; I'm speaking here just about (1) whether the White House has stressed a legal attorney-client privilege, as opposed to the executive privilege or policy concerns making the release of the memos improper, and (2) whether the Eighth Circuit decision (or other decisions) really apply to Congressional investigations.

I'd love to hear people's responses in the comments. Thanks to reader Scott Weber for the pointer to the L.A. Times article.

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